19 Iowa 273 | Iowa | 1865
The case was, under the statute, tried to a jury as a law action, and must be so treated on this appeal. It is to be regretted that there were no issues submitted to determine the questions of fact, whether Mrs. Hervey ever acknowledged the mortgage. Nor were the questions submitted by counsel, framed with that precision which is desirable. Thus, for example, the first one assumes the “ execution and delivery ” of the mortgage “ by the defendants;” whereas, Mrs. Hervey’s defense is based upon the theory that she never executed (in the proper sense of that word) the instrument at all, or delivered the same to the plaintiff or any person for him. But we must take the case as it is; and it brings into view several very important questions.
It is settled in this State that by an instrument duly executed, she may mortgage her property to secure her own or her husband’s debt. Patton v. Kinsman, 17 Iowa, 428; Jones v. Crosthwaite, 17 Id., 393; Stone v. Montgomery, 35 Miss., 83.
It is well known that a feme covert could not, at common law, during coverture, release her right of dower, or convey her own land by any direct mode of alienation. Distrust and jealousy of the marital power of the husband are supposed to be the foundation of this doctrine. Such a restraint on alienation could not, in the nature of things, be endured. And the common lawyers, with that fondness for subtilty which, at an early period, distinguished them, invented or resorted to the intricate, ingenious, cumbersome and expensive machinery of fines and common recoveries by which indirect modes, and by these only, could a wife’s interest in her husband’s or her own real estate be aliened. The conveyance by fines was early regulated by statute (18 Edw. I) in'which proceeding the wife was a necessary party, and the statute required a privy examination in order to transfer or assure her estate to the cognizee or purchaser. Blackstone (2 Com., 855) maintains that she is barred by a fine, “ because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by the husband.”
On the contrary, Mr. Hargrave (Harg. Co. Litt., 121 n) contends, that it is the judicial proceedings, and not the privy examination that gives the fine its binding and conclusive effect.
It is only material for our present purpose, to note that the privy examination was necessary because required by statute. See on the foregoing: Kerns v. Peeler, 4 Jones (Law) N. Car., 226-229, 1856; Green v. Branton, 1 Dev. Eq., 504-507, 1830, per Ruffin, Ch. J.; Jackson v. Gilchrist, 15 Johns., 89; Constantine v. Van Winkle, 6 Hill, N. Y., 177,
But fines and recoveries were, it is believed, never adopted in this country. (2 Washb. Beal Prop., 559, pi. 17, and authorities cited.) And certain it is, that these modes of assurance never prevailed in this State. Thus, by the ordinance of 1787 (Rev., § 928), subsequently extended over Iowa (Rev., pp. 947, 952 ; O'Ferrall v. Simplot, 4 Iowa, 381, 1857), it was provided, that until changed by statute “ real estate may be conveyed by lease and release, or bargain and sale, signed, sealed and delivered by the person, being of full age, in whom the estate may he, and attested by two witnesses, * * * provided such convey* anee be acknowledged, or the execution be duly proved and be recorded within one year.” This would clearly allow femes covert to convey their real estate by pursuing this course.
The earliest act on the subject, January 4, 1840 (Laws 1840, ch. 28, p. 35), provided (§ 20) that “ a married woman may relinquish her dower in any real estate of her husband, by any conveyance thereof executed by herself and husband, and acknowledged and certified in the manner hereinafter prescribed.” This was literally reenacted February 16, 1843. Blue Book, p. 207, § 20. By the same act (act 1840, § 24-26, et seq.), it was provided that “a married woman may convey any of her real estate by any conveyance thereof executed by herself and husband, and acknowledged by such married woman, and certified in the manner hereinafter prescribed,” viz., by a separate examination and acknowledgment; and this was also literally reenacted February 16, 1843. Blue Book, 207, § 24: And such, without quoting, was the provision of the act of January 2, 1846 (Laws, 1846, p. 4), the earliest married women’s protective act in Iowa.
These statutes were framed, as will be observed, in analogy to conveyances by fine, that is, the wife must be
Therefore, if an acknowledgment is not required by statute or usage, a deed by a married woman is good though not acknowledged. Constantine v. Van Winkle, 6 Hill (N. Y.), 177, 1843; reversing S. C., 2 Hill, 240; re-affirmed, 10 N. Y. (6 Seld.), 422, 1853, by the Court of Appeals.
And a separate examination is not necessary in all of the States. 1 Am. Jur., 73 ; Catlin v. Ware, 9 Mass., 218; 13 Id., 223; 2 Washb., 559, pl. 17.
It is thus seen that in Iowa, down to 1851, when the Code took effect, a married woman could release dower, or convey her land by a voluntary deed “ executed by herself and husband,” to the validity of which, however, a privy examination and acknowledgment were, by statute, expressly made necessary. We are now ready to inquire into the changes made by the Code of 1851. Many portions of the prior acts were incorporated into the Code, but the framers omitted these sections of the Blue Book above
In the place of the provisions of the former law, the Code of 1851 (§ 1207), provided broadly that “A married woman may convey her interest in real estate in the same manner as other persons." This section accomplishes two things: 1st, it removes her common law disability to'convey; and, 2d, it points out the mode of conveyance — the same mode as if she were sole, or as if the owner were a man.
And the same policy is further carried out by the act of March 8, 1858 (Rev., 897, § 2255), which declares that “ the joining of the wife with her husband in a conveyance of real estate passes any and all right of the wife,” whether it be dower or fee. And no acknowledgment, separate or otherwise, by the wife is provided for or declared to be necessary in order to give the instrument this effect.
Under our law an acknowledgment is not necessary to the validity of a deed or mortgage between the parties. Gould v. Woodward, 4 G. Greene, 82; Main v. Stewart, 2 Iowa, 378; Rev., § 2221.
Our statutes, since 1851, no longer require a privy acknowledgment of the wife, and hence no such acknowledgment is necessary'. And since conveyances by married women are, by the statute (Code 1851, § 1207 ; Rev., §§ 2215, 2255), put upon the same footing as those by men or feme sole, it follows that no acknowledgment at all by a married woman is requisite to a valid execution of a deed releasing her dower or conveying her real estate. The
It follows, that although Mrs. Hervey may not (as she alleges, and as the evidence tends strongly to show) ever have acknowledged the mortgage in suit, still the want of acknowledgment alone, if the mortgage were otherwise valid and duly executed and delivered, would be no defense to the foreclosure proceeding of the plaintiff.
The same work, the Touchstone, thus enumerates,
“2. That there be a person able to contract, and to be contracted with, and a thing to be contracted for, and that all these he set down ly sufficient names." (Id. 54.) “ And if the name of the grantee be not contained in the premises, yet if it be in the habendum, it may be good enough.” (Id., p. 75.) If made to a person disabled or incapable of taking, it is void. (Id., 55.)
“3. Beading, i. e., if required.
“ 4. Sealing, i. e., that the deed so written be sealed by the party, or by some other of his appointment (Id., 54), before the delivery of it.” (Id., 57.)
“ 5. Delivery, i. e., that the deed so written and sealed be delivered by the party, or some other of his appointment, as his deed (Id., 54), to the party to whom it is made, or to any other, by sufficient authority from him.” (Id., 57.) A deed takes effect by delivery; but if “ delivered before it be sealed, it is nothing worth.” (Id., 58.) See also as to requisites of deeds, Garrett v. Same, 7 Mowr., 545-547, 1828; Chiles v. Conley, 2 Dana, 21, 23 ; Ingram v. Little, 14 Geo., 173; McKee v. Hicks, 2 Dev., 379, 1833; Wiggins v. Lusk, 12 Ill., 132; 4 Kent. Com., 462; Swails v. Bustart, 2 Head (Tenn.), 561, 1859 ; Chauncey v. Arnold and Wife, 24 N. Y., 330, and other cases cited infra.
Under these authorities, it is clear that the mortgage in question, having been filled up in the absence of Mrs. Hervey, without any writing under seal, or, indeed, any writing at all, it would not, at common law, be a good conveyance; certainly not, unless subsequently redelivered or otherwise adopted or ratified. It must be admitted that much of the doctrine, as laid down in the Touchstone, is owing to, or largely influenced by, the technical rules of the common law respecting sealed instruments.
This chapter refers to contracts alone, and we pass it by, as now immaterial, without stopping to consider whether, or how far it was intended to elevate unsealed, or to degrade sealed instruments.
But by section 29, clause 20, it is provided that “ The word ‘ deed ’ is applied to an instrument conveying lands, hut does not imply a sealed instrument.” And under it we have decided that a seal is not essential to the validity of a conveyance (Pierson v. Armstrong, 1 Iowa, 282, 1855), though formerly it was so. Switzer v. Knapps, 10 Id., 72.
The English doctrine is, that a deed or sealed instrument must be wholly written and perfected in all its essential and material parts before delivery. This, as we have shown, is the doctrine laid down by the Touchstone, and is- the modern doctrine as declared in the thoroughly-considered case of Hibble White v. McMornie, 6 Mees. & Wels., 200, 1840, which expressly overruled Texira v. Evans. This case (Texira v. Evans), as it occupies so conspicuous a figure in the discussions on this subject, deserves to be stated. It is not reported, but is referred to by Wilson, J., 1 Anst., 225-229 (33 Geo. III), and thus stated by him: “I remember the case of Texira v. Evans, before Lord Mansfield, which was this: Evans wanted to borrow £400, or so much of it as his credit should be able to raise; for this purpose he executed a bond, with hlanlcs for the name and sum, and sent an agent to raise money on the bond. Texira lent £200 on it, and the agent accordingly filled up the blanks with that sum and Texira’s name, and delivered the bond to him. "On non est factum pleaded, Lord Mansfield held it a good deed ” — in other words, held that blanks in a sealed instrument of this character might be filled by parol authority. This is overruled in England, on the technical ground that
.Against Texira v. Evans, directly or in effect, see Boyd v. Boyd (blank attachment bond), 2 Nott & McC., 125, 1819; Gilbert v. Anthony (prison bond), 1 Yerg., 69, 1821; 2 Id., 149; 1 Head. (Tenn.), 98; Byers v. McClanahan (bond for money), 6 Gill & J., 250, 1834; Ayres v. Harness (bond for money), 1 Ohio, 368, 1824; United States v. Nelson (official bonds, blank filled up); 2 Brock., 64, 122; People v. Organ ( official bond filled up without express authority), 27 Ill., 27, 1861; Ingram v. Little (deed
An examination of these cases will show that they all, or substantially all, hold that if a specialty be required by law, it cannot be signed and sealed in blank and afterwards be wholly filled'up by parol authority; and if this be done in the absence of the party so signing and sealing, it is not his deed unless subsequently redelivered, acknowledged or adopted.
But one class of the cases hold, that if only certain blanks are left, these may, according to Texira v. Evans, be filled up in the absence of the obligor, pursuant to parol authority from him.
But the class of cases which deny Texira v. Evans, hold otherwise.
But we have found no case which adjudges that deeds' or conveyances of lands, may be signed in blank, and be wholly filled up and delivered in the absence of the grantor, by virtue of parol authority, and yet be binding upon him without a subsequent adoption, confirmation or redelivery by him.
Conveyances of land in this State must be in writing, and have the grantor’s name affixed to the same. Rev., ch. 96, §§ 2220, 2227.
Authority to sell land may be conferred by parol; but authority to “ convey or complete a conveyance,” must be conferred by writing. 2 Kent. Com., 614; Tappan v. Red
A deed signed in blank is not, in the sense of the law, executed. These must still be under our statute, as at common law, a grantor, a grantee and a thing to be granted, and these must all be described in the writing. As to essentialness of grantee being named or designated, see Bac. Abr. Grant, C, and common law authorities cited; also, Garnert v. Garnett's Lessee, 7 Monr. (Ky.), 545; Irwin v. Longworth, 20 Ohio, 581, 602, 1851; Chiles v. Conley's Heirs, 2 Dana [Ky.], 21, 1834; 4 Kent. Com., 462; Phelps v. Call, 262, 1847; Wiggins v. Lush, 12 Ill., 132; Chanacey v. Arnold, infira; Fletcher v. Mansar (christian name of husband as grantee left blank, he inserted his wife’s name ; held, that title was in the husband, there having been no delivery to the wife,), 5 Port. (Ind.), 267, 1859; Drury v. Foster, 2 Wall U. S. Rep., 20, 1864.
Sealing is dispensed with by the statute (§ 29, clause 20, supra) as one of the requisites of a conveyance of lands; and this was because with us seals had become a mere useless form, without significance. But the other essential common law requisites of a conveyance of land are not thereby abrogated; and regularly a deed should still, ag heretofore, be perfect before delivery, as it takes effect from that time. See authorities above; also McKee v. Hicks, 2 Dev., 379, 1833, approved 2 Dev. & Batt. (Law), 381; Brevard v. Neely, 2 Sneed (Tenn.), 164, 1854.
The 'majority of those cases above cited, which hold that blanks in sealed instruments may be filled up by parol authority, relate to bonds for money, or official bonds, or instruments of a commercial nature, such as stock certify cates and the like.
In the recent case of Chauncey v. Arnold, 24 N. Y., 330, 1862, the Court of Appeals decided that the name of a mortgagee should «be inserted before delivery, and if not so inserted, the instrument did not become effectual by delivery, in such an imperfect state, to one who advanced money, upon the agreement that he should hold the instrument as security for his loan. The question, whether the paper might have been made valid and effectual by proof of parol authority to fill the blanks with the lender’s name as mortgagee, was not decided.
observes: “If we take into consideration only what is written, the paper is wholly without meaning. A transfer to a person not named, or in any way described or designated, is, unconnected with anything else, a mere nullity.” To hold the instrument valid “would let in some of the mischief which the authors of the marriage settlement may be supposed to have intended to guard against in requiring a writing under seal to effect a disposition of the property. But although there is some diversity in the cases, I am of the opinion that none of those of modern date countenance the method of creating a title to or a lien upon land, which it is sought to uphold
In the still more recent case of Burns and wife v. Lynde, (6 Allen [Mass.], 305,1863), it was decided by the Supreme Court of Massachusetts, in a case strikingly like the one before us, that a printed deed, signed and sealed in blank by a married woman, the blanks being filled up in her absence, but by her parol authority, was ineffectual, unless afterwards redelivered or adopted when in a completed state. The dangerous nature of any other rule is well enforced in the opinion. And in the still more recent case of Drury v. Foster (2 Wall., 24, 1864), it was held by the Supreme Court of the United States that á paper intended as a mortgage, but with name of mortgagee and amount in blank, when signed and acknowledged by the wife, was void as to her, though the plaintiff was a bona fide owner, of the instrument.
Duncan v. Hodges (4 McCord, [South Car.] 239), 1827, is the only case we have met which has attempted to extend the doctrine of Texira v. Evans to conveyances of real estate.
In Duncan v. Hodges, the plaintiff signed and sealed a printed deed of conveyance of a tract of land, which was attested by two witnesses and left by the plaintiff with his agent, to be filled up whenever the defendant, who had agreed" to buy it, should execute a bond for the purchase-
ing the opinion, another ground for the decision is taken, and is thus stated by Johnson, J. “ The general rule is, that if a blank be signed, sealed and delivered and after-wards written, it is no deed, and the obvious reason is, that as there was nothing of substance contained in it, nothing ■ could pass by it. But this 'rule was never intended to prescribe to the grantor, the order of time in which the several parts of a deed should be written. A thing to be granted, a person to whom, and the sealing and delivery, are some of those which are necessary, and the whole is consummated by delivery; and if the grantor should think proper to reverse this order in the manner of execution, but in the end makes it perfect, before delivery, it is a good deed. Thus it is said, that if a deed be made with
This deed is distinguishable from the one under com sideration, there being in ours no specific grantee intended, no express authority from the owner to fill up blanks and deliver to him, and no subsequent adoption of what had been done, by bringing an action on the bond given by the purchase-money,- and claiming the benefit of the delivery of the deed.
"We cannot, upon principle or authority, uphold the validity of a “floating ” deed or mortgage of land; that is, an instrument intended to circulate or float in commercial or business channels after it has parted from the possession of the grantor, and when it finds an owner have his name inserted in the absence of the grantor without authority in writing. 6 M. & W., 200. Such an instrument is not valid proprio vigore as a conveyance or charge on lands, though it, or the transaction, may, in certain cases, give equitable right. Switzer v. Knapps, 10 Iowa, 72.
But admitting that certain blanks may, before delivery,
The property was the wife’s. At least it is so to be regarded on this appeal. She signed wholly in blank. She was not present when the paper was filled up. She is not shown to have received, enjoyed and retained any of the benefits arising from its negotiation, or otherwise to have ratified and consented to the act of filling up and negotiating. She is in no- manner equitably estopped to make the defense that the conveyance is not valid. Drury v. Foster, supra. It was filled up by Mr. Hervey, in her absence and without her knowledge, with the description of the lot; and there is no finding that she authorized, verbally or otherwise, this to be done. It was filled up with the name of the grantee and the description of the note by Smith, or under his order, when in Nebraska; and Smith does not pretend that he had any authority, verbal or otherwise, from Mrs. Hervey to do so. On the contrary, he swears that he supposed the property was Mr. Hervey’s, and that he acted, in filling the blanks, under the husband’s verbal authority and instructions. The law, of course, confers upon the husband no such power over the property of his wife. The penalty of his misuse of her signature cannot, certainly as between the parlies to the instrument, be the loss of her property. The case is distinguishable, and entirely different from McHenry v. Day (13 Iowa, 445), and Baldwin v. Snowden (11 Ohio, 203.)
We only observe that very different equitable considerations would apply, if the property were or shall be found to be the husband’s, and that he has received the benefits of the negotiation of the mortgage to the plaintiff, or otherwise adopted it.
Decree reversed and trial de novo ordered.
Reversed.